Trump's Deployment of the National Guard in L.A. Has Serious Legal Flaws

Yahoo

a day ago

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President Donald Trump has deployed California's National Guard in response to protests against immigration arrests in Los Angeles, sending 4,000 guardsmen into the city, along with 700 Marines to assist them. Trump claims he has the authority to federalize the National Guard over the objection of California Gov. Gavin Newsom, who condemned the move as a cynical effort to escalate the clash between federal law enforcement and civilians. On Monday, the state attorney general sued Trump in federal court, claiming he has no power to federalize the guard and seeking an injunction against its deployment. And on Tuesday, the AG requested a temporary restraining order 'that prevents federal troops from enforcing the laws in a civilian city.'
It is well established that the president can, in certain circumstances, call up the National Guard to enforce the law when a state's governor is unwilling to do so. But it is not at all clear that Trump has done so lawfully here. The president's attempt to invoke control over California's Guard rests on a questionable interpretation of a federal statute that may suffer from a serious legal flaw. The state's lawsuit against him is far from frivolous and raises significant questions about the scope of Trump's authority. It is quite possible that a federal court will soon hold that the president's alleged effort to sustain law and order in Los Angeles is itself a violation of the law.
To see why, it's important to understand what Trump has not done: He has declined, so far, to invoke the Insurrection Act, which unquestionably allows the president to seize control over a state's Guard. A key provision of the act allows the president to federalize the Guard when he deems it necessary 'to enforce the laws of the United States' in the face of 'unlawful obstructions' or 'rebellion.' And the law constitutes an exception from the Posse Comitatus Act, which bars domestic use of the military for law enforcement purposes. Taken together, this means that under appropriate circumstances, the president can wield the Insurrection Act to mobilize a state's National Guard without the consent of its governor, or even over their objection. And after doing so, the president can order the Guard to perform domestic law enforcement despite the usual prohibition against military involvement in civilian policing.
But Trump has not invoked the Insurrection Act in response to the protests in L.A. Instead, he has purported to federalize the National Guard under a lesser-known statute, 10 USC Section 12406. This law allows the president to call up the Guard when 'there is a rebellion or danger of a rebellion' against the U.S. government. To justify his invocation of the law, Trump's proclamation alleges that the anti–Immigration and Customs Enforcement protests 'constitute a form of rebellion' against the government. Critically, this statute does not permit federal troops to engage in general domestic law enforcement; they cannot start arresting anyone accused of breaking the law. Instead, guardsmen can only protect and support civilian officers—namely, ICE agents—in carrying out their duties.
According to California's lawsuit, though, there are several problems with Trump's legal theory that render it vulnerable to judicial pushback.
First, the statute says that when a president seeks to invoke the law, their 'orders … shall be issued through the governors of the States.' But, of course, Newsom did not issue an order to send California's National Guard into L.A. To the contrary: Newsom actively opposes the move—forcing Trump and Secretary of Defense Pete Hegseth to bypass him, giving orders directly to the adjutant general of California. By doing so, Trump and Hegseth defied the plain text of the statute, which appears to envision cooperation, not conflict, between the governor and the president.
Georgetown Law's Steve Vladeck suggests that this provision may be 'better understood as a purely administrative provision' rather than 'giving a substantive veto to the governor.' That may be right. But it could also have been intended to prevent the president from using the law to do what Trump is doing now—mobilizing the National Guard, in open defiance of the governor. After all, the Insurrection Act already allows the president to call up the Guard over a governor's objections, and to do so in a broader set of circumstances. Congress could have added this provision to Section 12406 to keep the law narrowly aimed at emergencies in which the state and federal governments agree on the need for a federalized Guard.
History provides some support for this reading of the law. No president has ever before used Section 12406 to call up the National Guard without the request of a state's governor. When presidents have needed to wrest control of a state's guardsmen from a lawless governor—such as during fights over desegregation in the 1950s and '60s—they have relied upon the Insurrection Act instead. Moreover, the provision requiring orders to be 'issued through' the governor was absent from the original version of the statute; Congress later amended it to include this requirement. It would be highly unusual for courts to simply ignore limiting language that Congress consciously inserted, especially when presidents already have another way to mobilize the Guard against the wishes of a governor.
Second, it is highly questionable that protesters' actions in L.A. amount to a 'rebellion' under Section 12406, as Trump claimed in his proclamation. A small minority of demonstrators has certainly destroyed property and attempted to obstruct ICE enforcement. But these actions are a far cry from the kind of 'rebellion' that the statute seems to contemplate. The law's preceding provision empowers the president during an 'invasion by a foreign nation,' and together, 'invasion' and 'rebellion' describe some kind of organized, armed assault on the federal government. Scattered acts of violence in protest of immigration arrests cannot plausibly be rounded up to any kind of 'rebellion' against the United States. And Trump's attempt to shoehorn these incidents into the statute stretches its text to the breaking point.
Federal judges are entitled to call out and halt this abuse of Section 12406. In cases involving the Alien Enemies Act, multiple courts have ruled that there is no 'invasion' justifying the invocation of that 18th-century law. There is no reason why courts cannot similarly hold that there is no 'rebellion' justifying the invocation of Section 12406. In its lawsuit, California argues that 'primarily peaceful protests with some acts of violence or civil disobedience do not rise to the level of a rebellion' under any plausible definition of the term. It is difficult to contest that conclusion. And the judiciary surely has constitutional authority to declare that in light of this fact, Trump has exceeded his power here.
Finally, Trump's declaration gestures toward some inherent constitutional prerogative to deploy the troops that bolsters his use of Section 12406. It is true that, under Article 2, presidents have widely acknowledged the power to send in military members to safeguard U.S. governmental functions. Under these circumstances, troops cannot engage in domestic law enforcement; they can only protect federal employees attempting to carry out their own duties. Trump's deployment of 700 Marines arguably falls into this category (though, again, these Marines can only protect civilian officers and cannot undertake general law enforcement themselves). But the National Guard is constitutionally distinct from the rest of the military—a unique joint enterprise between states and the federal government. States still hold primary authority over their Guards, the modern equivalent of state militias, and it is up to Congress to decide when the president can overrule a governor's orders. If Trump's attempt to federalize the Guard is not permitted by a congressionally enacted statute, then he cannot rely on Article 2 as a fallback.
In light of these issues, the question arises: Why didn't Trump just invoke the Insurrection Act, which would provide a far more solid basis for him to mobilize the Guard over Newsom's protest? In reality, the act is an emergency power that's historically been reserved for either uncontained crises of violence or lawless defiance of the Constitution, such as the aforementioned Southern states' refusal to acknowledge desegregation orders. No reasonable observer could believe that anything of the kind is going on now. Trump may call the protesters 'insurrectionists' and seek to stoke civil disorder, but he must know that the situation on the ground is a far cry from the L.A. riots or the Little Rock Nine. It would look absurd to invoke this statute prematurely against a handful of bad actors amid mostly peaceful protests.
By relying on different authorities, though, Trump has made himself more susceptible to legal challenge. California's lawsuit has been assigned to Judge Charles Breyer, a liberal Bill Clinton appointee. He should give the state's claims the scrutiny they deserve and consider issuing a restraining order or injunction that bars further mobilization of the state's Guard, nixes its current deployment, and prohibits troops from carrying out law enforcement duties. That Trump may try to flout such a ruling is no reason for Breyer to shirk his judicial responsibilities. The separation of the U.S. military from civilian law enforcement is a bedrock principle of American democracy. Courts should not give Trump a free pass to bulldoze this barrier under the pretense of a phony crisis.